Minor Plaintiff Satisfied Claim Presentation Requirement by Filing Application for Late Claim within One Year

April 2011

In a recent case highlighting the different standards for minor plaintiffs and adult plaintiffs when filing an application to present a late tort claim, the California Court of Appeal held that a minor plaintiff’s application for leave to present a late tort claim, filed within one year of accrual of the cause of action, was timely.  E.M. v. Los Angeles Unified School District et al. (April 20, 2011) ___Cal.Rptr.3d___[2011 WL 1496508]  In California, timely claim presentation is a prerequisite to bringing a lawsuit alleging a tort cause of action against a public entity.

The plaintiff in this case, a high school student, claimed she was sexually molested by her basketball coach with the last sexual encounter occurring in or around September 2007, when she was sixteen.  The plaintiff filed a government tort claim against the District approximately nine months later, on June 11, 2008.  The District denied the claim on the ground that the plaintiff had failed to present her claim within six months after the event or occurrence, as required under Government Code section 911.2.

On August 4, 2008, less than one year after the date of her last sexual encounter with the coach, the plaintiff filed an application for leave to present a late claim under section 911.4.  As required, she explained the reasons for her delay, citing the basketball coach’s control over her playing time and communications with colleges interested in offering her an athletic scholarship, and her shame.  The District rejected her application on September 25, 2008 and, on October 1, 2008, the plaintiff turned eighteen.  On February 25, 2009, plaintiff filed a lawsuit and on April 21, 2009, filed a petition for relief from the claims statutes.  The trial court denied her petition as untimely (seven months after the board’s rejection) and dismissed her case. 

The Court of Appeal held that, while the plaintiff’s initial June 11, 2008 tort claim was untimely, she nonetheless satisfied the requirements of Government Code sections 911.4 and 911.6 for the filing of a late claim.  Section 911.4 authorizes the filing of an application to present a late claim “within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.”  Under section 911.6, public entities are required to grant such applications when “the person who sustained the alleged injury, damage or loss was a minor during all of the time specified in 911.2 for the presentation of the claim.”  Moreover, she initiated her lawsuit on February 25, 2009, within six months of the rejection of the late claim application.    

The Court of Appeal further held that the District should have granted the plaintiff’s application for leave to file a late claim, reasoning that she was a minor at all relevant times and had filed her application within one year of the accrual of the cause of action.  

This case underscores the importance of thorough evaluation of tort claims to determine whether or not they are timely and applications for leave to file a late tort claim to determine whether the leave is justified.  If you have any questions regarding this matter, please call one of our six offices.

F3 NewsFlash prepared by Kimberly Smith and Melanie Seymour.
Kimberly is a partner in the F3 Oakland office.
Melanie is an associate in the F3 Oakland office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this new law may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.fagenfriedman.com.

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